Parenting After Separation
ONTARIO WOMENS NETWORK ON CHILD CUSTODY
AND ACCESS (OWNCCA) 2002
What do parenting
arrangements look like after separation?
After a separation or a divorce,
most parents come to an agreement about who will care for the children without having to
go to court. In most cases, mothers have "custody" of the children, and
fathers will have "access" to the children.
The "custodial parent" has
the responsibility for the care and control of the children, and is the one who must make
the important decisions that shape the lives of the children. In a situation where one
parent has sole custody, the access parent has visitation rights. Even though they may
spend significant time with their children, access parents do not have the right to make
decisions about the children's upbringing without the consent of the custodial parent.
Claims by Father's Rights groups that men receive unfair treatment by the courts in
custody decisions are simply untrue. Courts often award custody to women because they
recognize that the mother was the primary caregiver when the relationship was intact. In
such cases, they recognize that children will suffer the least upset in a separation if
they remain in the care of the parent who has been the primary caregiver.
If there is bias in the legal
system, it is against women, not men. Indeed, when men do apply for custody of the
children, they often get it despite the fact that they had not exercised their fair share
of parental responsibilities during the relationship. This is a reflection of the current
trend in favour of joint custody and maximum contact between a child and both parents.
In 1985, the Divorce Act was amended
to include a new principle in family law: "maximum contact" between a child and
both parents must be encouraged after divorce. This was accompanied with the inclusion of
the "friendly parent rule", that directs judges to grant custody to that parent
which will agree to foster a maximum of contact of the children with the other parent. Mothers who seek to protect their children from
abusive or controlling fathers are often labeled "unfriendly", and they may lose
custody of the children because the courts find them "uncooperative".
Maximum contact with both parents is
supposed to be in the best interests of children, but it often is not. When a father
is violent, abusive or controlling it is not in the best interest of the child to have
extensive contacts with him. Unfortunately, wife assault and sexual abuse of children has
not prevented violent men from gaining custody or unsupervised access to their children.
And courts still expect women to continue to parent with their abuser.
In addition, the maximum contact
rule is regularly used by vindictive men to harass ex-partners, by allowing them to take
mothers back to court for any allegation of access denial.
Father's Rights groups say that unfair denial of access by mothers is a big
problem, but it actually happens in a very small percentage of cases.
THE RISE OF JOINT CUSTODY ORDERS
Since 1985, there has been an
important increase in "joint custody" awards by the courts. Joint custody blurs
the roles of custodial and access parents by conferring the same decision-making authority
to both. In some cases, the parents will have "joint physical custody" and the
child will reside in both their homes equally. But in most cases, the child will reside
with the mother, and both parents have equal control over the way their child will be
Because some fathers have become
increasingly involved in child rearing, joint custody has become a fashionable option, and
most would agree that if both parents are willing to provide equal support and mutual
respect, this is a desirable arrangement. However, problems appear when the courts impose
joint custody on parents against their will.
Studies show that even when joint
custody is willingly undertaken, parenting patterns are very slow to change and women are
often left with the burden of physical and financial responsibility for their children.
And in the process, they will lose the autonomy necessary to raise their children. Joint custody can also significantly lower child
support awards, and women often end up living in poverty. Finally, joint custody is a tool
that can be used by violent or manipulative men to continue to exercise control over their
children and ex-partners for many years after separation or divorce.
MANDATORY SHARED PARENTING
In 1998 the Special Committee of
Custody and Access recommended that the Divorce Act be radically changed and that
"shared parenting" replace the notion of custody and access. The Committee
basically recommended that shared parenting become mandatory, and that parents be obliged
to agree on joint "parenting plans". In fact, there is not much difference
between shared parenting and joint custody: in both cases, parents would equally share in
Several countries have adopted
similar rules, and recent studies indicate that this is not a good option either for
women, or for children. Indeed, under shared parenting regimes more women have to deal
with husbands who try to control the way they raise the children but don't actually share
in the caregiving work. More children are placed in the care of abusive and violent
fathers, and more parents spend more time in courts litigating the meaning of the
different clauses in their parenting plans. Shared parenting can work: but it must never
be imposed on parents, and it not be allowed in cases of woman abuse or child abuse.
PARENTAL RESPONSIBILITY - WHAT'S
WRONG WITH THAT?
In the last few years, a new concept
has emerged: both parents have responsibilities toward their children, and these
responsibilities are ongoing after a separation or a divorce. A few very influent
organizations are advocating in favour of this model, such as the Canadian Bar
Association. Recent media reports indicate that the Minister of Justice, Martin Cauchon,
will be recommending a reform along these lines.
responsibility" model has been adopted in different countries, with different
nuances. In the U.K. and in Australia, it is similar to a mandatory joint custody or
shared parenting model, whereas in the State of Maine it encourages both parents to decide
to what extent they will share in decision-making and in caregiving. Reports indicate that
the reforms in the UK and in Australia have not been successful. No report has yet been
done on the Maine model.
The Ontario Women Network on Child
Custody and Access is concerned that a reform based on this extremely vague notion of
"parental responsibility" will harm women and children. Like joint custody, its
success will depend on the good will of the parents involved. Women already complain that
there is no mechanism to enforce or monitor fathers who do not exercise scheduled access
and disappoint their children. The Minister of Justice has indicated that he believes that
family law would be better left to specially trained mediators and professionals, outside
the courtroom. The "softer" concept of parental responsibility might lend
itself to this more informal process, involving unregulated tools like "parenting
plans". As with mediation, there may be no public record, no right of appeal and no
constitutional guarantees. Like mediation, it's a service that would likely be privatized,
without national standards.
In family law disputes, women are
often fighting for the safety of themselves and their children, while some men are
fighting to maintain power and control. Making custody and access decisions less
formal will not cause violence to disappear; it will simply remove the few existing
protections for women and children. Women who leave their partners must have the right to
safety, autonomy and economic security in order to be effective parents and carry on with
WHAT DO WOMEN NEED?
Joint custody and shared parenting
should never be mandatory, and should only be encouraged where there are no violence or
control issues, and where parents have and established pattern of positive communication.
The "Maximum Contact"
and the "Friendly Parent" rules must be abolished.
The government must carefully
consider the best interests of the child and women's equality rights before changing the
language of "custody and access" in the Divorce Act.
Ontario Womens Network on Custody and Access was formed in 2001 to respond
to federal law reform initiatives on the Divorce
Act and family law legislation. The
steering committee is comprised of the following groups: Action Ontarienne contre la
violence faite aux femmes (AOCVF), DisAbled Womens Network (DAWN) Ontario, Education
Wife Assault (EWA), The National Association of Women and the Law (NAWL), Northwestern
Ontario Womens Centre, Ontario Association of Interval and Transition Houses
(OAITH), and the Ontario Womens Justice Network (OWJN).
We believe that
some of the reforms envisioned by governments risk putting in danger the security and
autonomy of women and their children, particularly those who have experienced spousal
violence or sexual abuse.
Fact Sheet is one of five available on the website of the Ontario Womens Justice
For more information, please contact the National Association of Women and the Law at
613-241-7570 (ext. 22), or by e-mail: firstname.lastname@example.org,
or write to us at:
and Access / La Garde Lï¿½gale
National Association of Women and the Law
Suite 303, 1066 Somerset West
Ottawa, Ontario, K1Y 4T3
We encourage you
to communicate directly with your federal or provincial elected representatives to tell
them that any changes to the Divorce Act must recognize the reality of violence against
women and protect women and children from on-going abuse. To find the name of your federal
Member of Parliament, you can call Elections Canada at 1-800-463-6868 or visit their
website at www.elections.ca. You do not have to
give your name or address, only your postal code.
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